Filed 7/20/15 P. v. Hernandez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN HERNANDEZ,

Defendant and Appellant.

B260554

(Los Angeles County

Super. Ct. No. VA134152)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Lori A. Fournier, Judge. Dismissed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

_________________________
2

Defendant and appellant, Jonathan Hernandez, appeals from the judgment entered 

following his plea of no contest to second degree robbery (Pen. Code, § 211).1 The trial 

court sentenced Hernandez to three years in state prison. 

We dismiss Hernandez’s appeal as inoperative because he failed to obtain a 

certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

2

On March 3, 2014, Hernandez’s codefendant, Oscar Hernandez, went into an 

AM/PM Mini Mart and walked out with an 18-pack of beer without paying. The store 

clerk, Sochchan Singh, ran after Oscar Hernandez and got into a fight with him on the 

street. Defendant Jonathan Hernandez stepped out of a car, pointed a handgun at Singh,

and said, “What’s up?” Afraid that he was going to be shot, Singh ran back into the 

store. 

Los Angeles County Deputy Sheriff Juan Medrano arrived at the scene and drove 

Singh around the neighborhood until Singh spotted the perpetrators’ car parked in the 

driveway of a house. Both Oscar Hernandez and Jonathan Hernandez were inside the 

house, along with some other people and the stolen beer. Singh identified Oscar 

Hernandez as the person who grabbed the beer and Jonathan Hernandez as the person 

who pointed a gun at him. The police did not find any guns either inside the house or in 

the possession of either defendant. 

Singh originally described the gun to Medrano as “a black semiautomatic.” But 

when Singh spoke to Medrano on the day of the preliminary hearing, he described the 

gun as “a round cylinder revolver.”

 

1 All further statutory references are to the Penal Code unless otherwise specified.

2

The facts have been taken from the record of the preliminary hearing.
3

2. Procedural history.

On April 2, 2014, Hernandez was charged by information with second degree 

robbery, second degree commercial burglary, and a personal firearm use enhancement

(§§ 211, 459, 12022.53, subd. (b)).

On May 20, 2014, both defendants accepted a package plea offer whereby each 

would plead no contest to second degree robbery; the other charges and enhancement 

allegations would be dismissed. Under the terms of the proposed agreement, Oscar 

Hernandez would receive a two-year prison sentence and Jonathan Hernandez would 

receive a three-year prison sentence. After waiving his constitutional rights to a jury trial, 

to confront witnesses, to remain silent, and to present a defense, Jonathan Hernandez pled 

no contest to one count of second degree robbery.

On October 2, 2014, defense counsel informed the trial court that Jonathan 

Hernandez had given him some reasons for wanting to withdraw his no contest plea. 

However, counsel said, “In my opinion, they do not amount to a legal cause to withdraw 

the plea. They were factors that we were aware of at the time the plea was entered.” The 

trial court replied, “And I did review the transcript, and there is nothing in the transcript 

that’s a basis to withdraw the plea.” The court then sentenced Jonathan Hernandez to the 

agreed-upon three-year mid-term term for robbery, and ordered him to pay a $300

restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8), and a $30 

criminal conviction assessment (Gov. Code, § 70373). The court suspended a $300 

parole revocation fine (§ 1202.45). The court awarded Hernandez presentence custody 

credit for 214 days actually served and 32 days of good time/work time, for a total of 

246 days.

On December 1, 2014, Jonathan Hernandez filed a notice of appeal, checking the 

box labeled “This appeal is based on the sentence or other matters occurring after the plea 

that do not affect the validity of the plea.” He never applied for a certificate of probable 

cause.
4

DISCUSSION

Hernandez has questioned why he received a three-year sentence when his 

codefendant, Oscar Hernandez, received only a two-year sentence. Hernandez asserts he 

should not have received a greater penalty than his codefendant because they pled to the 

same charges and, in addition, it was not true that he had used a gun and, in fact, he 

“didn’t even do anything.” However, the evidence produced at the preliminary hearing 

demonstrated that he did have a gun which he used to threaten the store clerk. And since 

his codefendant did not use a gun, this would explain the disparity between their prison 

terms.

In any event, because Hernandez’s claim essentially goes to the validity of his no 

contest plea, it is not cognizable on appeal without a certificate of probable cause granted 

by the trial court pursuant to section 1237.5. As Hernandez does not have a certificate of 

probable cause, his appeal must be dismissed as inoperative. (See People v. Mendez

(1999) 19 Cal.4th 1084, 1094-1099.)

DISPOSITION 

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J. JONES, J.*

 

*

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.